Be Careful What You Wish For: Now That Kenya's Been Pushed To Recognize IP, It's Starting To Protect More

from the look-at-that dept

IP maximalists should be careful what they wish for. As we noted in China, where after years of diplomatic pressure, China's "crackdowns" on IP infringement seems to have hurt foreign companies, it looks like something similar may soon happen in Kenya. Last year we discussed how Kenya had been pressured into an anti-counterfeiting treaty (similar to ACTA) that was leading to problems where legitimate generic drugs were being destroyed. However, Amelia Andersdotter alerts us to the news that Kenya's new proposed constitution includes a special section saying that "the state shall support, promote and protect the intellectual property rights of the people of Kenya."

What's that going to mean in practice? Well, a Kenyan lawyer's discussion of the new section of the constitution suggests that this is not about creating incentives for greater creation or innovation. No, instead, it's about trying to put a price tag on anyone else building off of Kenyan culture:

This provision seeks to ensure that Kenyan communities are protected from exploitation and the loss of elements of their cultural heritage to the wider world. Examples of such loss include the patenting of the kiondo -- a hand-woven bag made from sisal with leather trimmings, originating in Kenya and mostly associated with the Kamba and Kikuyu communities -- by an unknown Japanese entity; and the attempted registration of the word 'kikoi' as a trademark by a company in the United Kingdom. A kikoi is a traditional cloth garment mainly found in East African countries such as Kenya and Tanzania and is used as a wrap by women.

Really? So Kenya wants to patent a design of a traditional bag so that no other country can make it? That's not intellectual property, whose purpose is to create incentives for new creativity and innovation. It's blatant protectionism against foreign competition. And then taking control over a word used in a totally different country? Again, that has nothing to do with creativity or innovation. So, now that the western world has pushed Kenya to "recognize" intellectual property, rather than understanding the actual purpose of intellectual property, it seems to be embedding the concept into its constitution in a manner that has nothing, whatsoever, to do with encouraging innovation or creativity.

First, The West came to colonize your land and enslave your people. Then they came to rape you of your natural resources and dump toxins into your environment. Now they have come to put a price tag on your culture and enslave your mind. Resist! Say no to IP attachés, treaties, and conventions. You are not truly sovereign with these Western social constructs.

Re:

I want to see the surprised faces when other countries start to aggressively protect their "intellectual property" since the U.S. doesn't produce anything most R&D is shifting to other places and those other places are the ones that will do the patenting and copyright, that will be hell to pay.

Think 20 years from now what the field could look like, the U.S. and other countries could find themselves paying through the nose and without access to technology that could help them just like they are doing to others around the world right now.

This is not something unpredictable is very clear, you shove others they will shove back.

Protectionism of national treasures is *entirely* justified.

Patenting traditional designs

Full disclosure, I'm a Kenyan, and I find a lot of problems with your blanket statement that: "It's blatant protectionism against foreign competition." Some people were trying to patent or copyright elements of Kenyan culture, and you want Kenya to just roll over and let them?
I don't understand your argument is it that when someone is trying to use IP protection to rip off another person's creation, the guy ripping off has more rights than the rightful owner, that the guy being ripped off cannot use that same IP protection system to fight back, or what?

Re: Patenting traditional designs

So you're saying that the Kenyan culture has a rightful owner? Who is that, exactly? Can you patent elements of Kenyan culture? If so, doesn't that infringe upon the rights of all of the other Kenyans? If not, why not? You're Kenyan, so Kenyan culture is your culture.

Really, the idea of patenting the essence of a culture is just stupid and unworkable.

Re: Patenting traditional designs

I am South African. In the case of South Africa, a similar issue saw a woman in the US trademarking the name of the herbal tea, Rooibos, made from a bush that is indigenous to South Africa. The leaves of the bush are also used for beauty and health products. This meant that in the US market, South African manufacturers could not sell their products under the name that they had built up over decades, to the detriment of local farmers and manufacturers. It cost the SA government a fortune to contest this trade mark in the US and have it overturned.
I don't like the idea of patenting and trade-marking products in the developing world to protect them from Northern piracy, but it is understandable that this is the way that some countries are thinking.

USA deals with it like softwood lumber

A major blow to the American economy

I guess Walmart will have to cancel their two-for-$9.99 sale of authentic, hand-woven, Kenyan Kiondo bags. If the Kenyans go through with this, it could have a ripple effect across our economy. Just think of all the Kenyan-related products that Americans rely upon.

Re: A major blow to the American economy

So, now that the western world has pushed Kenya to "recognize" intellectual property, rather than understanding the actual purpose of intellectual property, it seems to be embedding the concept into its constitution in a manner that has nothing, whatsoever, to do with encouraging innovation or creativity.

It sounds like they learned the lesson well.

There's another perverse angle here, too - in the same way that developing nations sometimes hopscotch wealthier ones in some technical realms by skipping intermediate infrastructures (think cell phones and POTS lines), it looks like Kenya's skipping the whole let's-pretend-we're-encouraging-innovation part, and getting on with the power of the state is for extracting rents program.

Anyway, Horace -

I don't understand your argument is it that when someone is trying to use IP protection to rip off another person's creation, the guy ripping off has more rights than the rightful owner, that the guy being ripped off cannot use that same IP protection system to fight back, or what?

Not speaking for Mike, but here's my answer -

I think you're making a category error that is common when talking about international law. You're substituting 'person' for 'nation'. It is important to remember that it is a legal fiction to say things like 'national interest'. A nation state doesn't have interests any more than corporations do. Nations don't exist independent of people. When we talk of nation's (or corporation's) interests, what we're really doing is asserting that the people making the arguments in question are interested in the outcomes, and speaking with the legal authority of a nation state. Other people with (sometimes competing, sometimes aligned) interests like to accept that legal fiction, because the mutual admiration society is useful to everyone concerned.

And that 'everyone concerned' bit is important. In this case, who benefits from the assertion that the people operating the legal machinery in Kenya are making that some random folks in the UK can't use the legal machinery in that country to deny everyone else the use of the work 'kikoli'? If the Kenyan lawyers get their way, I promise you that the folks who profit aren't going to be the folks making wraps today. The best possible outcome is some garment mill churning them out under an exclusive license (in practical terms, 'exclusive license' means the folks with guns will stop you from selling stuff you made if you haven't paid them protection money). Garment factory work might be better for real people than the alternative, but (1) it isn't an attractive long-term trade, (2) it can happen anyway without wasting time and money arguing about the ownership of words, and (3) all this does is enrich the layers of lawyers and politicians who argue this stuff.

The important lesson to take away from this is that a lot of law is abstraction and metaphor piled on top of abstraction and metaphor. And while abstractions and metaphors are useful, they are lossy - the don't fully capture what you're talking about. Worse, when you stack them up, they sometimes completely obscure what you're talking about and lead to perverse results. That happens a lot in IP discussions, and when you remove the abstractions and metaphor, you see that what you're really talking about is a small group of people trying to use the Men With Guns to stop other people from pointing at something they made and saying "this is called a [Widget]", or even worse, from stopping people from making a widget in the first place.

Like anything, there are times when that sort of thing makes sense. But those times happen a lot less than the law in most countries recognize, and it is all getting worse instead of better, as this example illustrates.

Re: Nothing wrong with what Kenya is doing

I don't think you understand. This "arms race" mentality is what got us into the problem in the first place. Developing nations think they want to place the arms race too, but you know they will be happier by not even knowing the arms race exists.

Re: Patenting traditional designs

My point is not that what our parliament is doing is right, but that what they were reacting to was Kenyans being denied the rights to use emblems found in their culture by IP claims by non-Kenyans. Personally I don't think such things should happen, but you cannot criticize the Kenyan government from moving to protect its citizens' cultural icons from being exploited by foreigners using foreign IP laws.
From what I read in our media, the government wasn't making the actions for their own sake, or to extract money from anyone, but just to ensure that the people whose culture actually makes the kikoi and kiondo cannot be prevented from selling their creations in international because someone else fraudulently obtained a trademark or patent on them.

Kenya is trying stop stop patenting and copyrighting!

Base on the two quoted examples: they want to stop a Japanese company patenting a traditional Kenya bag design not stop people making them and they want to stop a UK company copyrighting a common Kenyan word.

The quoted text is not suggesting Kenya want to take the copyrights and patents, just stop anyone from doing so. Reading the source article makes this very clear.

I believe Kenya is right to do this, it is not protectionism and Mike Masnick owes Kenya an apology.

I can't tell this from the article... does this mean that Kenya wants to prevent non-Kenyans from even making kiondo or kikoi, or does it just want to keep people from patenting / trademarking it so that no one can claim exclusive rights? The former would seem rather restrictive, while the latter would seem to be championing the public domain of Kenya, and that I could understand.

It does say on the ILO site that "There is no specific ownership claim of the original weaving idea by any individual or community." so if the law is written properly, it could be beneficial.

Hah? What's protectionist about it? It's not even calling Creole the Official Language....

It's a little jejune; that tribe that moved north and turned white is a horse out of the barn, but it doesn't read as psychotic when it comes to citing a native corpus. At least, it's nice to think the pride of local crafts hasn't been sold with leverage five (local) administrations over.